Criminal burden

Labour & European Law ReviewWeekly Issue 26412 April 2012

Depending on the seriousness of the incident, an employer may feel obliged to report an employee to the police. In Crawford and anor v Suffolk Mental Health Partnership NHS Trust, the Court of Appeal said that employers should only do so after very careful consideration “as being under the cloud of possible criminal proceedings is a very heavy burden” for employees.

Basic facts

Mrs Crawford and Mr Preston both worked as nurses in a ward for patients with dementia. On 22 September 2008, an 87-year-old man called JE had become very agitated and aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching.

As she was about to leave for the day after her shift, Ms Jeffrey, an experienced staff nurse, noticed he was sitting in a chair tied to a table by a sheet or two, with another sheet across his stomach, surrounded by night staff. She reported this incident when she returned to work three days later.

The two nurses were suspended and the hospital decided to report the incident to the police on 30 September. After the police decided not to take any action, the hospital started its own investigation which found that the nurses had tied JE’s chair to the table and that they had tried to secure him to his chair with a sheet, but did not make clear whether they had succeeded.

At Mrs Crawford’s hearing, the dismissing officer rather controversially tried to wrap the sheet around the HR advisor in the way Mrs Crawford described to ascertain whether it was possible or not. He concluded that it was not. Neither Mrs Crawford nor her advisor were informed that this experiment was being undertaken. Both nurses were dismissed for gross misconduct in March 2009.

They claimed unfair dismissal.

Tribunal and EAT decisions

And the Tribunal upheld their claims, saying that no reasonable employer could properly have concluded that JE was tied to the chair with no attempt to release him, given the available evidence. The hospital should also have taken into consideration the fact that JE was very agitated and difficult.

It criticised the dismissing officer for carrying out and relying on an experiment with a sheet at the hearing. However it reduced the nurses’ compensation on the basis that they had tied the chair to the table, which was contrary to their code of practice.

The EAT concluded that the Tribunal had substituted its view for that of the employer by characterising the experiment carried out by the dismissing officer as “impermissible” and because it failed to consider all the evidence.

Decision of Court of Appeal

The Court of Appeal restored the Tribunal’s decision saying that it was "little short of astonishing" that the hospital could have thought it appropriate to report the two nurses to the police.

It said that although hospitals must not conceal wrongdoing, they also “owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit”.

It went on to say that “being under the cloud of possible criminal proceedings is a very heavy burden” for employees and employers should only subject them to that burden after “careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the employee's conduct”.

It did not think that was justified in this case as no one had suggested that the nurses were acting other than in the best interests of JE and the other patients. “There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved”.

Suspension should not, it said, be a knee jerk reaction because otherwise it would be a breach of the duty of trust and confidence owed to the employee.

It also criticised the committee that referred the nurses to the police, saying it should have paid “close attention” to the “unblemished record” of the staff in question when assessing whether there was a risk that they would treat other patients the same way.

Comment

This is a welcome Court of Appeal decision which reminds employers that they cannot simply act to protect their self interests while disregarding the duty which they owe to their employees. It is of particular practical importance for unions representing their members in regulated sectors. When involved in a case where an employer is considering reporting members to the police or another regulatory body, this case underlines the importance of the employer carefully considering whether the evidence allows them to hold a reasonable and genuine belief that the case, if established, might justify the stigma which their employees will consequently suffer.